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Review Case No. 229/2005 CR 1896/2004

Review Order No.17/2005

IN THE HIGH COURT OF LESOTHO

In the matter between

REX Crown

V

Tanga Qhola Accused

In Maseru District

ORDER ON REVIEW

Delivered by Honourable Mr Justice T Monapathi On 20th day of September, 2005.

This matter comes before me on automatic review. The Accused was found guilty of having contravened section 15(e) of Local Passports and Travel Documents Act No. 11 of 1998. He was charged with only one count.

Applicant was found in possession of defaced, altered, destroyed passports bearing different names. The documents are singled out as local passport No. N 277536, Local passport No. PO 64922 and two Republic of South Africa ID documents bearing different names.

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The outline of the evidence by Public Prosecutor indicated that there was such unlawful activity to which Accused pleaded guilty. In mitigation Accused said he forged these documents because he wanted to get job as there are no jobs. He was unemployed. He had five (.5) children who attended school.

The learned magistrate in sentencing the Accused endorsed that Accused was a dangerous person who engaged in unlawful activities. Furthermore the sentence should be "both deterrent and preventive". It is however not in every bad or extreme case that option of a fine will not be imposed. This is so unless there is aggravation. That an option of a fine should be imposed is contemplated by the legislature without in anyway removed the presiding officer's discretion on sentence. See R V ARIWESHITO AND OTHERS CASES 1964 (2) SA 699 (SB)- See also S V SCOUT 1969 (1) SA 545 (ECD) at 547 E-G. This case speaks about consideration of principle where accused was a first offender who otherwise led a good life.

The learned magistrate also considered that the Accused had pleaded guilty but his demeanour did not appear to be remorseful for what he had

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done. The learned magistrate does not spell out although it is an issue of fact about a matter arising after conviction. In any event the learned magistrate would still be misdirecting herself by regarding the conduct of the Accused during trial as an aggravating circumstance. See R V TAGWIGWIRA 1969 (2) SA 656 as approved in S V MPITE 1969 (1) SA 298(TPD). The leaned magistrate was in error. The Accused was sentenced to five (.5) years imprisonment without option of a fine presumably because of his behaviour in court. That should not be so.

I do not accept that even if there had been aggravation or unless Accused had had previous convictions, he should not be given an option of a fine. See S V MOKHETHI 1971 (2) SA 227(0). In the instant case the learned Magistrate apparently showed anger at what Accused had done. She would have otherwise been more lenient and reasonable in the circumstances of a first offender. In my view and for that reason the sentence ought to be varied.

Much as the learned magistrate accepted that the Accused was involved in the dangerous activity, he should have been given a maximum option of a fine which is M5000.00. This equally brings home to the Accused that he

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should desist from such unlawful activities. In no way would it be perceived that the offence was minimized. In addition this alternative fine is now way out of proportion to the term of imprisonment. See R V BAULENI 1954 (3) SA 272 (SR) at 273 F-G.

The sentence should read "five (5) years imprisonment or M5000.00."

T Monapathi

Judge

Copy: O/C Central Prison

Director of Prisons

O/C Prisons Maseru

O/C Police Maseru

Director of Public Prosecutions

C.I.D Maseru

All Magistrates

All Public Prosecutors